Mr Michael Robert Dickinson v Interforms Printing Group T/A IPG Print
[2010] FWA 3729
•12 MAY 2010
[2010] FWA 3729 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Robert Dickinson
v
Interforms Printing Group T/A IPG Print
(U2009/14702)
COMMISSIONER ASBURY | BRISBANE, 12 MAY 2010 |
Termination of employment – jurisdiction – application lodged beyond time allowed – further period of time in which to lodge application allowed.
Background
[1] On 27 October 2009, Michael Robert Dickinson was dismissed by Interforms Printing Group Pty Ltd trading as IPG Print. On 14 December 2009, Mr Dickinson filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act). By virtue of s.394(2) of the Act, an application for an unfair dismissal remedy must be made:
(a) Within 14 days after the dismissal took effect; or
(b) Within such further period as FWA allows under subsection (3).
[2] Mr Dickinson’s application in FWA was lodged 34 days beyond the required time. Mr Dickinson sought an extension of time on the ground that he believed IPG Print was covered by a State Award, and had filed an application for reinstatement with the Queensland Industrial Relations Commission (QIRC) on 17 November 2009.
[3] On 27 January 2010, IPG Print filed a response objecting to Mr Dickinson’s application on the grounds that it was filed out of time, and that Mr Dickinson had not presented any reasons for the delay to satisfy the requirements of s.394(3). The application for an extension of time was listed for hearing on 24 March 2010. Mr Dickinson represented himself, and gave evidence on his own behalf. IPG Print was represented by Mr Neal McLary of the Printing Industries Association of Australia (PIAA).
Evidence
[4] Mr Dickinson said that his dismissal on 27 October 2009 was unfair, and that he had decided to dispute his dismissal. Mr Dickinson contacted “Industrial Relations” and obtained a form, which he completed and lodged within the 21 day time period indicated on the form. The form Mr Dickenson obtained was an Application for Reinstatement under the Industrial Relations Act 1999 (Qld) (the Queensland IR Act). Mr Dickinson filed that application with the QIRC on 17 November 2009, 21 days after his dismissal, and within the 21 day time limit required under the Queensland IR Act.
[5] On 18 November 2009, the Registrar of the QIRC wrote to Mr Dickinson stating that he should be aware that the QIRC may be prevented from dealing with a claim for unfair dismissal where the employer is a constitutional corporation. Mr Dickinson was told that he should make further enquiries at the Federal Industrial Registry on the number provided, and then advise the Registrar of the QIRC whether he wished to proceed with his application. Mr Dickinson said that at that stage he did not know what a constitutional corporation was. Mr Dickinson rang the Federal Industrial Registry and was told that staff could not give advice on whether his former employer was a constitutional corporation. Mr Dickinson decided that he would proceed with his application to the QIRC and informed the Registrar accordingly.
[6] Mr Dickinson said that he telephoned his former employer on 19 November 2009 and spoke to Ms Adrienne Jones, the Accounts/Administration Officer. During that conversation he asked Ms Jones whether Interforms was under a State award. According to Mr Dickinson, Ms Jones confirmed that this was the case. Mr Dickinson maintained that Ms Jones simply said he was under a State Award and did not use the term “NAPSA”. Mr Dickinson said that he did not know what a NAPSA was in any event. On 23 November 2009, Ms Jones wrote to Mr Dickinson stating that:
“Recently we received paperwork from you for Reinstatement of Employment. Attached to this letter are the current forms that should be completed should you choose to proceed.”
Attached to that letter was a copy of Form F2 Application For Unfair Dismissal Remedy to FWA.
[7] Mr Dickinson said that he received the letter and the form from Ms Jones on the same day that he received a letter from the Registrar of the QIRC informing him that a conciliation conference in relation to his application had been listed for 4 December 2009. Mr Dickinson said that he disregarded the correspondence from Ms Jones because he had chosen to proceed with his application to the QIRC. The date of the conference before the QIRC was subsequently changed to 14 December 2009. Mr Dickinson did not request the change of date. Mr Dickinson attended the QIRC on 14 December 2009.
[8] Mr Dickinson’s application to the QIRC for reinstatement was allocated to me in my capacity as a member of the Queensland Industrial Relations Commission. PIAA on behalf of IPG Print indicated to the QIRC that the Company objected to the QIRC dealing with the application on the basis that IPG Print is a constitutional corporation. Mr Dickinson was informed that it was my view that the QIRC did not have jurisdiction to deal with his application, and the conciliation conference listed for 14 December 2009 did not take place.
[9] Mr Dickinson said that within 30 minutes of receiving this information, he went to the Registry of Fair Work Australia and filed an application for relief in respect of his dismissal. Mr Dickinson also said that when he received the forms from his former employer in relation to filing an application in FWA, he thought that his former employer was trying to “throw him off course”. Under cross-examination, Mr Dickinson agreed that he had received warnings about his conduct from managers of IPG Print, but disputed the content and the basis of those warnings.
[10] Evidence on behalf of IPG Print was given by Ms Adrienne Jones, the Company’s Accounts/Administration Officer. Ms Jones said that her conversation with Mr Dickinson in relation to his award coverage took place on 28 October 2009, when Mr Dickinson telephoned her to discuss his final pay. During the conversation, Mr Dickinson asked about the correct award coverage for his previous position. Ms Jones responded by saying words to the effect of:
“You are covered by the Printing Industry Award State NAPSA.”
[11] Ms Jones confirmed that a copy of an application to the QIRC for reinstatement was received by IPG Print from Mr Dickinson on or around 18 November 2009, but it did not appear that the application had been filed as it did not bear a stamp or other indication of receipt by the QIRC Registry. According to the evidence of Ms Jones, Mr Scrimshaw, the Operations Manager of IPG Print told her to mail the FWA forms dealing with unfair dismissal to Mr Dickinson to enable him to lodge his application in the correct jurisdiction. On 19 November 2009 Ms Jones received a telephone call from Mr Dickinson during which Mr Dickinson asked whether the documentation relating to his application for reinstatement to the QIRC had been received. Ms Jones told Mr Dickinson that she had been instructed by Mr Scrimshaw to mail him the FWA forms.
[12] Mr Dickinson tendered a fact sheet that he downloaded from the internet which states, under the heading “What is a Corporation” that a proprietary company, often indicated by the use of “Pty Ltd” at the end of the corporation’s name, is a corporation. It is not clear when Mr Dickinson downloaded this document and he was not asked about this document, or his understanding of the corporate status of IPG Print in cross examination.
[13] In any event, documentation relating to Mr Dickinson’s employment, tendered in these proceedings is inconsistent and refers variously to IPG Print and Interforms Printing Group Pty Ltd. The letter informing Mr Dickinson of the termination of his employment is on letter head bearing the name IPG Print and is signed by Mr Scrimshaw as the Operations Manager of IPG Print. There is no reference to the Interforms Printing Group Pty Ltd on that letter. Similarly, a warning letter given to Mr Dickinson on 21 September 2009 refers to IPG Print. Mr Dickinson’s pay slips indicate that his employer is Interforms Printing Group Pty Ltd. The Employment Separation Certificate in respect to the termination of Mr Dickinson’s employment signed by Mr Scrimshaw on 28 October 2009, indicates that the employer is IPG Print. Further, the letter sent by Ms Jones to Mr Dickinson on 23 November 2009 is on letter head bearing the name IPG Print. There is an Australian Business Number printed vertically on the left side of the document.
Legislation
[14] Section 394(3) of the Act vests FWA with discretion to extend the time in s.394(2) for a person who is dismissed to make an application for an unfair dismissal remedy. FWA may allow a further period for the application to be made, if FWA is satisfied that there are exceptional circumstances, taking into account the following factors:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[15] Mr Dickinson was required to lodge his application for an unfair dismissal remedy in FWA by 10 November 2009. The application was lodged by Mr Dickinson on 14 December 2009, some 48 days after his dismissal took effect, and 34 days after the time allowed in s.394(2) of the FW Act. Mr Dickinson has provided a reason for the delay. Essentially, the reason for the delay is that Mr Dickinson did not understand that his former employer is a constitutional corporation. I am sure that Mr Dickinson is not alone in his lack of understanding of the finer points of constitutional and employment law. I am also of the view that Mr Dickinson’s belief that he was covered by an Award of the QIRC and that this was the appropriate forum in which to lodge an unfair dismissal claim, was genuine and reasonable in the circumstances.
[16] Even if Mr Dickinson read the fact sheet he tendered prior to lodging his application for reinstatement with the QIRC, and appreciated the significance of the use of “Pty Ltd” after a company name, the warning letter given to him on 21 September 2009; the letter of termination dated 28 October 2009 and the Employment Separation Certificate provided to him after his dismissal, referred to IPG Print and not to Interforms Printing Group Pty Ltd.
[17] Indeed, there is apparent confusion on the part of IPG Group about the entity that is the respondent in these proceedings. Documentation lodged in and tendered to FWA contains various forms of reference to the Company. The Form F3 Employer Response to Application for Unfair Dismissal Remedy completed on behalf of IPG Print, states that the legal name of the employer is “Interforms Printing Group” and that its trading name is IPG Pty Ltd. A letter to FWA setting out the Company’s position following an attempted conciliation in FWA refers to the Company as “Interforms Printing Group Pty Ltd”. In written submissions tendered in the hearing of this matter, the Company is also referred to as Interforms Printing Group Pty Ltd trading as IPG Group.
[18] There is a conflict in the evidence about when the telephone conversation between Mr Dickinson and Ms Jones about award coverage took place. However, it is clear that Mr Dickinson made reasonable inquiries about the matter to Ms Jones, who on her own evidence, told him that he was covered by Printing Industry Award State NAPSA. According to Ms Jones, this conversation took place on 28 October 2009, well before Mr Dickinson’s unfair dismissal application was filed in the QIRC. If Ms Jones did use the term “NAPSA” it is not surprising that Mr Dickenson failed to appreciate the significance of the term, given that he was simply seeking to establish whether he was covered by a State award. It was not unreasonable that Mr Dickinson formed the view, after his conversation with Ms Jones, that he was covered by an award of the QIRC. It was also not unreasonable for Mr Dickinson to file an application for reinstatement with the QIRC on the basis of his belief about his award coverage.
[19] Mr Dickinson took prompt steps to obtain information relevant to filing his application in the QIRC, and filed his application within the 21 day time limit required under the Queensland IR Act, by ensuring that he sent it by registered post. Reference was made in the submission on behalf IPG Print to the decision of Deputy President McCarthy in Matthew Palmer v RCR Engineering Pty Ltd 1(Palmer). In that case, the applicant requested an extension of time on the basis that he wrongly lodged an unfair dismissal application in the Western Australian Industrial Relations Commission. In deciding to extend time, Deputy President McCarthy noted that the applicant took action to contest the termination of his employment almost immediately, and that had his application been lodged in FWA, it would have been lodged well within the time allowed by the Act.2 It was contended that in the present case, Mr Dickinson’s application was lodged in the QIRC 21 days after the termination of his employment, and that had it been lodged with FWA, it would not have been within the allowed under the Act.
[20] That the application in Palmer was lodged in a State Tribunal, in a time frame that would have been in compliance with that in s.394(2) of the FW Act, was only one of the circumstances Deputy President McCarthy took into account. The fact that an unfair dismissal application lodged within time in a State Tribunal that does not have jurisdiction to deal with the application, would also have been within time if it was lodged in FWA, is coincidental rather than determinative. This is particularly the case when the applicant does not understand that the application should have been lodged in FWA and not a State Tribunal. What is of more significance is that the application is lodged by a person with a reasonable belief that it is being lodged in the appropriate forum, and it is lodged in compliance with the time frame relevant to such applications in that forum. From such conduct, it can be presumed that an applicant intended to pursue an application for relief in respect of a dismissal in accordance with whatever time frame was required.
[21] In the present case, Mr Dickinson had a reasonable belief that he was covered by an award of the QIRC and lodged his application with the QIRC in the time required, in accordance with a checklist document published by the QIRC on its website. Mr Dickinson acknowledged that there was a time limit and took reasonable steps to meet it.
[22] I am also of the view that Mr Dickinson did not act unreasonably in pursuing his application in the QIRC. The letter from the Registrar of the QIRC dated 18 November 2009 raised a question as to whether the QIRC had jurisdiction to deal with Mr Dickinson’s application. It is not unreasonable that Mr Dickinson viewed with suspicion the letter sent to him by his former employer on 23 November 2009 attaching documentation relating to an application to FWA, given that Mr Dickinson believed that he had been unfairly dismissed. I also accept that when Mr Dickinson received confirmation from the QIRC that a conciliation conference had been listed into his application for reinstatement, it was reasonable that he chose to attend the conference.
[23] That the date of the conciliation conference was changed from 4 December to 14 December 2009 cannot be attributed to any delaying conduct on the part of Mr Dickinson. Upon being informed at the conference of 14 December 2009 that the QIRC did not have jurisdiction to deal with his application, Mr Dickinson immediately lodged an application for an unfair dismissal remedy in FWA.
[24] In relation to s.394(3)(b) of the FW Act, Mr Dickinson first became aware of his dismissal on 27 October 2009, and acted to contest it within the time frame he thought applied from that date. Mr Dickinson has gone to great effort to dispute his dismissal, under the difficulties faced by any self-represented party. It is also the case that IPG Print can have been in no doubt that Mr Dickinson was disputing his dismissal from 18 November when a copy of the application to the QIRC was received by the Company. Indeed, as late as 23 November 2009, IPG Print corresponded with Mr Dickinson and sent him the form required to lodge an application for an unfair dismissal remedy with FWA. By this conduct, IPG Print acknowledged that Mr Dickinson was disputing his dismissal and indicated that it was still prepared to countenance such an application at that date, albeit in FWA and not the QIRC.
[25] There is no evidence of any prejudice to IPG Print if the extension of time is granted, other than that which is created by the need to defend an unfair dismissal application, regardless of whether it is filed within the required time. Further, there is no evidence of any prejudice to IPG Print by virtue of Mr Dickinson not lodging the FWA form the Company sent him on 23 November 2009, until 14 December 2009.
[26] There are disputed factual issues between the parties and this is not a case where it is clear that Mr Dickinson will not succeed or has limited prospects of success, such that merit is a significant factor in the decision to extend time. Further, there is no basis for finding that it would be unfair to other persons in a similar position to Mr Dickinson. This is particularly so given that Mr Dickinson made an honest and reasonable mistake, of the kind which many unrepresented parties typically make in any period where there are changes to employment law.
[27] In my view the circumstances in this case can be said to be exceptional, and I allow a further period to 14 December 2009, for the application to be made. I Order accordingly.
COMMISSIONER
Appearances:
Mr N. Dickinson representing himself.
Mr N. McLary on behalf of the Respondent.
Hearing details:
2010.
Brisbane:
March 24.
1 [2009] FWA 1431
2 Ibid at [8]
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